Citation Nr: 0524165
Decision Date: 09/02/05 Archive Date: 09/13/05
DOCKET NO. 02-15 292A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for a back disability.
2. Entitlement to an initial compensable disability rating
for bilateral hearing loss.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Theresa M. Catino, Counsel
INTRODUCTION
The veteran served on active military duty from December 1959
to February 1962.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2002 rating action of the
Department of Veterans Affairs Regional Office (RO) in
Jackson, Mississippi. In that determination, the RO denied
service connection for a back disability and for right ear
hearing loss. In addition, the RO granted service connection
for left ear hearing loss and assigned a noncompensable
evaluation to this disability, effective from August 2001.
Following receipt of notification of the June 2002 decision,
the veteran perfected a timely appeal with respect to the
denial of his claims for service connection for a back
disability and for right ear hearing loss and the assignment
of an initial compensable evaluation for the
service-connected left ear hearing loss. During the current
appeal, and specifically by an August 2004 rating action, the
RO granted service connection for hearing loss of the
veteran's right ear and assigned an initial noncompensable
evaluation for the service-connected bilateral hearing loss.
The veteran has continued to express disagreement with the
initial noncompensable rating assigned to his
service-connected bilateral hearing loss. Consequently, the
issues are correctly stated as listed on the title page of
this decision.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the issues on appeal has been obtained.
2. Audiometric test results completed during the current
appeal correspond to numeric designations no worse than Level
II for the veteran's right ear and Level II for his left ear.
3. The veteran did not exhibit chronic disability of the
lumbar spine in service or arthritis within the first post
service year, and lumbar spine disability is not otherwise
associated with his active duty.
CONCLUSIONS OF LAW
1. The criteria for an initial compensable disability rating
for bilateral hearing loss have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 2002); 38 C.F.R. § 4.7, § 4.85, Table VI,
Table VIa, Table VII, Diagnostic Code 6100 and § 4.86 (2004).
2. A lumbar spine disability was not incurred or aggravated
in service, and arthritis of the lumbar spine may not be
presumed to have been so incurred. 38 U.S.C.A. §§ 1101,
1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303,
3.307, 3.309 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Assist
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A.
§ 5100 et seq; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2004). This law eliminated the concept of a well-grounded
claim (inapplicable here), redefined the obligations of VA
with respect to the duty to assist, and imposed on VA certain
notification requirements.
By letters dated in December 2001 and January 2005 in the
present case, the RO informed the veteran of the type of
evidence necessary to support his service connection and
increased rating claims. In addition, the RO notified the
veteran that it would make reasonable efforts to help him
obtain necessary evidence with regard to these issues but
that he must provide enough information so that the agency
could request the relevant records. The RO also discussed
the attempts already made to obtain relevant evidence with
regard to these claims. Further, the RO notified the veteran
of his opportunity to submit "additional evidence," "any
other evidence," or "information describing additional
evidence or the evidence itself." Thus, he may be
considered advised to submit all pertinent evidence in his
possession.
Additionally, the June 2002 rating decision, the August 2002
statement of the case (SOC), and the September 2004 and March
2005 supplemental statements of the case (SSOCs) notified the
veteran of the relevant criteria and evidence necessary to
substantiate his service connection and increased rating
claims. These documents also included discussions regarding
the evidence of record, adjudicative actions taken, and the
reasons and bases for the denial of these issues.
The Board is mindful that, in concluding that the VCAA notice
requirements have been satisfied, the Board has relied on
communications other than the RO's formal VCAA notice letter
to the veteran. Importantly, however, the purpose of the
VCAA is to notify the appellant of the elements pertinent to
his or her claim. See, Pelegrini v. Principi, 18 Vet. App.
112, 120-21 (2004) (Pelegrini II). Once that goal has been
achieved--irrespective of whether it has been done by way of
a single notice letter or via more than one
communication--the essential purposes of the VCAA have been
satisfied. In the present case, the Board finds that,
because each of the four content requirements of a VCAA
notice has been met, any error in not providing a single
notice to the veteran covering all content requirements was
harmless. See, e.g., 38 C.F.R. § 20.1102 (2004) and Mayfield
v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the
Board notes that, in the current appeal, the veteran has not
claimed that VA has failed to comply with the notice
requirements of the VCAA.
The Board also notes that the Court's decision in Pelegrini
II, held, in part, that a VCAA notice, as required by 38
U.S.C.A. § 5103(a), must be provided to a claimant before the
initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. In any event, the
claimant still has the right to VCAA content complying notice
and proper subsequent VA process, and that has been done, as
discussed above. The Board finds that any defect with
respect to the timing of the VCAA notice requirement was
harmless error. See Mayfield, supra. Although the notice
provided to the appellant in January 2005 was not given prior
to the first adjudication of the issues on appeal, the
content of the notice complied with the requirements of
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and, after the
notice was provided, the case was readjudicated and an
additional SSOC was provided to the veteran in March 2005.
In addition, the veteran has been accorded pertinent VA
examinations during the current appeal, and VA has obtained
all pertinent evidence identified by him. Consequently, the
Board finds that VA has satisfied its duty to notify and to
assist pursuant to the VCAA with regard to the issues on
appeal. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002);
38 C.F.R. § 3.159(b) (2004); Pelegrini v. Principi, 18 Vet.
App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16
Vet. App. 183 (2002).
Analysis
A. Service Connection For A Back Disability
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1131 (West 2002). Service connection may be
granted for any disease diagnosed after discharge when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d) (2004).
Additionally, where a veteran served continuously 90 days or
more during a period of war or during peacetime service after
December 31, 1946, and arthritis becomes manifest to a degree
of at least 10 percent within one year from the date of
termination of service, such disease shall be presumed to
have been incurred in or aggravated by service, even though
there is no evidence of such a disorder during the period of
service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West
2002); 38 C.F.R. §§ 3.307, 3.309 (2004).
The veteran has asserted that he developed a back disability
as a result of his active military duty. See, e.g., June
2003 RO hearing transcript (T.) at 10-18. In particular, he
has maintained that, during active military duty, he
accidentally fell into a grease pit and landed on his back.
T. at 15.
Significantly, however, the competent evidence of record does
not support the veteran's contentions. In this regard, the
Board acknowledges that service medical records reflect a
finding of scoliosis of the dorsolumbar spine to less than
one-inch to the right at the December 1959 enlistment
examination. Additionally, in January 1960, the veteran
sought treatment for complaints of back pain. Subsequently,
at the December 1961 separation examination, the veteran
reported having had sustained an injury to his back in the
early months of that particular year when he had fallen into
a grease pit.
Importantly, however, no lumbar spine pathology was found at
the separation evaluation. In fact, the examiner concluded
that the veteran had had no symptoms since the back injury
and that his back condition was not significant and
nondisabling.
Furthermore, the first post-service evidence of low back
symptomatology is dated in November 1980, almost nineteen
years after the veteran's discharge from active military
duty. According to private medical records dated in that
month, a lumbar myelogram reflected the presence of a
herniated disc fragment at the L3-L4 level. Also,
cartilaginous tissue was determined to be consistent with a
herniated intervertebral disc showing degenerative changes.
During that month, the veteran underwent surgery for a
herniated disc at the L3-L4 level on the right side.
Thereafter, in December 1996, the veteran underwent an L4-L5
partial hemilaminectomy with a discectomy. The pertinent
diagnosis upon discharge was defined as a left large
paracentral L4-L5 herniated nucleus pulposus.
Current low back diagnosis has been characterized as
arthritis of the lumbar spine. This medical conclusion is
based upon X-rays taken of the veteran's lumbar spine in
January 2002, which reflected the presence of minimal
degenerative changes in the facet joints at the L4-L5 and
L5-S1 levels. In addition, an upper gastrointestinal series
completed in July 2004 illustrated, in pertinent part, mild
lumbar degenerative changes.
Significantly, the claims folder contains no competent
evidence supporting a finding of an etiological relationship
between the arthritis of the veteran's lumbar spine and his
active military duty. In fact, the examiner who had
conducted the January 2002 VA spine examination did not see
any relationship between the veteran's current back pathology
and his in-service back injury.
Furthermore, the competent evidence reflects that arthritis
of the veteran's lumbar spine was not exhibited during active
duty or within one year of separation from such service, and
it has not been found to be otherwise related to his active
military duty. Consequently, the Board finds that a
preponderance of the evidence is against the veteran's claim
for service connection for a back disability, and the
doctrine of reasonable doubt is not for application. See
38 U.S.C.A. § 5107(b) (West 2002).
The Board declines to obtain a medical nexus opinion with
respect to the claim of service connection a back disability
because there is no evidence of pertinent disability in
service or for several years following service. Thus, while
there are current diagnoses of back disability, there is no
true indication that pertinent disability is associated with
service. See Charles v. Principi, 16 Vet. App. 370 (2002).
Indeed, in view of the absence of abnormal findings in
service, the negative examination performed at separation
from service, and the first suggestion of pertinent
disability many years after active duty, relating back
disability to service would certainly be speculative.
However, service connection may not be based on a resort to
pure speculation or even remote possibility. See 38 C.F.R. §
3.102 (2004). The duty to assist is not invoked, even under
Charles, where "no reasonable possibility exists that such
assistance would aid in substantiating the claim." 38 USCA
5103A(a)(2).
B. Initial Compensable Rating for Service-Connected
Bilateral Hearing Loss
In evaluating the severity of a particular disability, it is
essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2
(2004). In this regard, the Board notes that, by the June
2002 rating action, the RO granted service connection for
hearing loss of the left ear and assigned a noncompensable
evaluation to this disorder, effective from August 2001.
According to the service medical records, high frequency
perceptive hearing loss in the veteran's left ear was shown
at the audiological evaluation conducted at the December 1961
separation examination. A VA audiological examination
conducted in January 2002 reflected essentially normal
hearing acuity in the veteran's left ear through 2000 Hertz
which sloped to a severe sensorineural hearing loss. In
particular, this evaluation reflected the following puretone
thresholds in the veteran's left ear: 10, 15, 40, and
75 decibels in his left ear at 1,000, 2,000, 3,000, and 4,000
Hertz, respectively. The speech recognition score for his
left ear was determined to be 100% correct.
Additionally, by an August 2004 rating action, the RO granted
service connection for hearing loss of the veteran's right
ear and assigned a noncompensable evaluation for his
service-connected bilateral hearing loss, effective from
August 2001. Service medical records are essentially
negative for a finding of hearing loss in the veteran's right
ear. A report dated in January 1962 includes a diagnosis of
high frequency perceptive hearing loss but does not specify
whether such a condition involved one of the veteran's ears
in particular, or both. The January 2002 VA audiological
examination reflected essentially normal hearing acuity in
the veteran's right ear through 2000 Hertz, which sloped to a
severe sensorineural hearing loss. At a subsequent VA
audiological examination completed in July 2003, the veteran
reported having been exposed to excessive noise as a result
of his responsibilities as a "bazooka man" and his work
with hydraulic equipment. Audiological testing reflected the
following puretone thresholds in the veteran's left ear: 15,
20, 50, and 75 decibels at 1,000, 2,000, 3,000, and 4,000
Hertz, respectively in the veteran's left ear and 20, 60, 70,
and 80 decibels at 1,000, 2,000, 3,000, and 4,000 Hertz
respectively in his right ear. The average puretone
thresholds were 50 decibels in the right ear and 40 decibels
in the left ear. The speech recognition score was determined
to be 96% correct in his left ear and 92% correct in his
right ear. Following the examination, and also based upon a
review of the claims folder, the examiner concluded that "it
is likely that the [veteran's] hearing loss started while [he
was] in . . . service."
The veteran has perfected a timely appeal with respect to the
issue of entitlement to an initial compensable evaluation for
his service-connected bilateral hearing loss. This
service-connected disorder has remained evaluated as
noncompensably disabling.
As the present appeal arises from an initial rating decision
which established service connection and assigned an initial
disability rating, the entire period is considered for the
possibility of staged ratings. In other words, consideration
will be given to the possibility of separate ratings for
separate periods of time based on the facts found. See
Fenderson v. West, 12 Vet. App. 119 (1999).
Disability evaluations are determined by the application of a
schedule of ratings which is based, as far as can practicably
be determined, on the average impairment of earning capacity.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2004). Each
service-connected disability is rated on the basis of
specific criteria identified by diagnostic codes. 38 C.F.R.
§ 4.27 (2004).
The basis of disability evaluations is the ability of the
body as a whole, or of the psyche, or of a system or organ of
the body to function under the ordinary conditions of daily
life including employment. 38 C.F.R. § 4.10 (2004). It is
also necessary to evaluate the disability from the point of
view of the veteran working or seeking work and to resolve
any reasonable doubt regarding the extent of the disability
in the veteran's favor. 38 C.F.R. §§ 4.2, 4.3 (2004). If
there is a question as to which evaluation to apply to the
veteran's disability, the higher evaluation will be assigned
if the disability picture more nearly approximates the
criteria for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2004).
It is VA's defined and consistently applied policy to
administer the law under a broad interpretation, consistent,
however, with the facts shown in every case. When, after
careful consideration of all procurable and assembled data, a
reasonable doubt arises regarding service origin, the degree
of disability, or any other point, such doubt will be
resolved in favor of the claimant. By reasonable doubt it is
meant that an approximate balance of positive and negative
evidence exists which does not satisfactorily prove or
disprove the claim. It is a substantial doubt and one within
the range of probability as distinguished from pure
speculation or remote possibility. See 38 U.S.C.A. § 5107(b)
(West 2002); 38 C.F.R. § 3.102 (2004).
Relevant laws and regulations stipulate that evaluations of
defective hearing range from noncompensable to 100 percent
based on the organic impairment of hearing acuity as measured
by the results of controlled speech discrimination tests
together with the average hearing threshold levels as
measured by puretone audiometry tests in the frequencies of
1,000, 2,000, 3,000, and 4,000 cycles per second. See
Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992) (defective
hearing is rated on the basis of a mere mechanical
application of the rating criteria). The provisions of
38 C.F.R. § 4.85 (2004) establish eleven auditory acuity
levels from I to XI. Tables VI and VII as set forth in
§ 4.85(h) are used to calculate the rating to be assigned.
In instances where, because of language difficulties, the
Chief of the Audiology Clinic certifies that the use of both
puretone averages and speech discrimination scores is
inappropriate, Table VIa is to be used to assign a rating
based on puretone averages. 38 C.F.R. § 4.85(h) (2004). In
adding guidance for cases which involve exceptional patterns
of hearing impairment, the schedular criteria stipulates
that, when the puretone threshold at each of the four
specified frequencies (1000, 2000, 3000, and 4000 Hertz) is
55 decibels or more, the rating specialist will determine the
Roman numeral designation for hearing impairment from either
Table VI or Table VIa, whichever results in the higher
numeral. Each ear will be evaluated separately. 38 C.F.R.
§ 4.86(a) (2004). Additionally, when the puretone threshold
is 30 decibels or less at 1000 Hertz, and 70 decibels or more
at 2000 Hertz, the rating specialist will determine the Roman
numeral designation for hearing impairment from either
Table VI or Table VIa, whichever results in the higher
numeral. That numeral will then be elevated to the next
higher Roman numeral. Each ear will be evaluated separately.
38 C.F.R. § 4.86(b) (2004).
In the present case, the veteran essentially contends that
his hearing acuity is more severe than the current
noncompensable evaluation indicates. T. at 1-10. In
particular, he has described the need to turn up the volume
on his television more than normal but has denied using
hearing aids. T. at 2-3. The veteran's lay descriptions are
deemed to be competent evidence. Espiritu v. Derwinski,
2 Vet.App. 492 (1992). However, the lay descriptions of this
service-connected disability must be considered in
conjunction with the clinical evidence of record as well as
the pertinent rating criteria.
Relevant evidence included in the claims folder indicates
that, during the current appeal, the veteran underwent VA
audiological evaluations in January 2002, July 2003, and
January 2005. Importantly, the examiner specifically noted
in the report of the January 2005 examination that the
results of that particular audiological testing did not
represent any change in the evaluation of the severity of the
veteran's hearing loss.
Specifically, audiometric testing completed in January 2005
revealed puretone thresholds of 15, 30, 65, and 80 decibels
in the veteran's right ear and 15, 25, 60, and 80 decibels in
his left ear at 1,000, 2,000, 3,000, and 4,000 Hertz,
respectively. The average of these thresholds was
47.5 decibels for his right ear and 45 decibels for his left
ear. Additionally, the veteran had speech discrimination
scores of 88 percent correct in his right ear and 88 percent
correct in his left ear. Applying 38 C.F.R. § 4.85, Table VI
(2004) to these results, the veteran has a numeric
designation of II for his right ear and II for his left ear.
Application of 38 C.F.R. § 4.85, Table VII (2004) results in
a finding that a noncompensable disability evaluation for the
veteran's service-connected bilateral hearing loss is
warranted.
Additionally, the Board has also considered the guidance
provided in the pertinent regulations for cases which involve
exceptional patterns of hearing impairment. See 38 C.F.R.
§ 4.85, Table VI, Table VIa, Table VII and § 4.86 (2004).
However, neither the January 2002, July 2003, nor January
2005 VA audiological examinations provide findings that the
puretone threshold at each of the four specified frequencies
(1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more (in
either ear) or that the puretone threshold is 30 decibels or
less at 1000 Hertz, and 70 decibels or more at 2000 Hertz (in
either ear). Consequently, an initial compensable rating for
the service-connected bilateral hearing loss based on
exceptional patterns of hearing impairment is not warranted.
See 38 C.F.R. § 4.86(a) & (b) (2004).
The Board concludes, therefore, that an initial compensable
schedular disability evaluation for the service-connected
bilateral hearing loss cannot be granted. See, 38 C.F.R.
§ 4.7, § 4.85, Table VI, Table VIa, Table VII, Diagnostic
Code 6100 and § 4.86 (2004). The preponderance of the
evidence is against the veteran's claim of entitlement to an
initial compensable disability rating for service-connected
bilateral hearing loss.
Finally, the Board does not find that consideration of an
extraschedular rating under the provisions of
38 C.F.R. § 3.321(b)(1) is warranted. That provision
provides that, in exceptional circumstances, where the
schedular evaluations are found to be inadequate, the veteran
may be awarded a rating higher than that encompassed by the
schedular criteria, as shown by evidence indicating that the
disability at issue causes marked interference with
employment, or has in the past or continues to require
frequent periods of hospitalization rendering impractical the
use of the regular schedular standards. Id. The facts of
this case do not show that the service-connected bilateral
hearing loss has resulted in marked interference with the
veteran's employment or requires frequent periods of
hospitalization.
38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the
degrees of disability specified are considered adequate to
compensate for considerable loss of working time from
exacerbations or illnesses proportionate to the severity of
the several grades of disability." Factors such as
requiring periodic medical attention are clearly contemplated
in the Schedule and provided for in the evaluations assigned
herein. What the veteran has not shown in this case is that
his service-connected bilateral hearing loss has resulted in
unusual disability or impairment that renders the criteria
and/or degrees of disability contemplated in the Schedule
impractical or inadequate. Accordingly, consideration of
38 C.F.R. § 3.321(b)(1) is not warranted in this case.
ORDER
Service connection for a back disability is denied.
An initial compensable disability rating for
service-connected bilateral hearing loss is denied.
____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs